Two years
ago the United States Supreme Court invalidated a Texas statute
that criminalized private homosexual conduct between consenting
adults. The decision in Lawrence v. Texas declared
that the federal Constitution protects a zone of privacy for
Americans, whether married or unmarried, which may not be
invaded by the government.

While the Texas law was limited
to homosexual sodomy, the rationale of the court's opinion
should apply equally to laws aimed at heterosexual cohabitation.
Since gays and lesbians have a right of personal privacy,
certainly unmarried heterosexuals should also have a
constitutional right to intimate association.

Legal
scholars and public prosecutors have generally agreed that, in
view of the Lawrence decision, criminal laws targeting
consensual sodomy in private, whether heterosexual or
homosexual, are constitutionally invalid. But not much has
been said about the viability of criminal laws prohibiting "lewd
and lascivious cohabitation" between persons of the opposite
sex.

Such
anti-cohabitation laws are rarely enforced in criminal courts.
Sometimes, however, they are used as a rationale to deny rights
to people in a civil context.

Authorities
in Virginia, for example, cited that state's anti-cohabitation
law to revoke a professional license of the owner of a day care
center. A court in New Mexico relied on such a statute,
since repealed by the Legislature, to keep a drunk driving
defendant in jail pending trial because if he were released on
bail, the man would return home to live with his girlfriend in
violation of state law.

A few years
back, North Carolina officials refused to grant compensation to
unmarried victims of domestic violence on the theory these women
were criminals because they were cohabiting with their
boyfriends.

Now a
Michigan appeals court has relied on that state's
anti-cohabitation law as a reason for prohibiting Christian
Muller, a divorced father of two children, from having his
girlfriend in the house overnight if Muller's kids are present.
As a result, Michelle Moon, who normally lives in the house, now
sleeps outside in a van parked in the driveway when Muller's two
daughters, ages 5 and 7, come to visit their dad every other
weekend.

Muller is
asking the Michigan Supreme Court to review the case and to
declare the anti-cohabitation law unconstitutional. Such a
ruling would be a logical extension of the United States Supreme
Court's decision in Lawrence.

The appeals
court in Michigan admitted there was no evidence to show that
any harm to the children would occur if Moon were to sleep in
the house while they were visiting their father. The
judges simply referred to the anti-cohabitation statute and
ruled against the father on that basis alone.

Michigan is
one of only seven states prohibiting cohabitation by unmarried
opposite-sex couples. The others are Florida, Mississippi, North
Carolina, North Dakota, Virginia and West Virginia.

The situation
in these seven states is somewhat bizarre. In these
jurisdictions, homosexual cohabitation is legal but heterosexual
cohabitation is not. As a result, criminal laws cannot be
used as a legal basis to prohibit cohabitation by gay parents
while children are in their home, but heterosexual parents may
have their cohabitation restricted.

Cohabitation is
very common in America. Most adults live together prior to
marriage. Cohabitation has really become part of the
marital decision making process for most Americans.

Of the six
million cohabiting couples reported by the 2000 Census, about 40
percent are raising children at home. Each year, more than
one-third of all American children are born out of wedlock.

At least 6 percent of
Michigan's 2.6 million children live in households
where the adults are unmarried, according to Kids
Count Databook 2005.

Considering
the prevalence of cohabitation, and the constitutional right of
privacy, state officials should not interfere with the right of
a parent to share a home with an unmarried partner, absent
evidence that such a living arrangement is harmful to children
in the home.

The Michigan
appeals court said that it respected the anti-cohabitation
statute and left the statute's fate to the Legislature.

Don't hold
your breath waiting for Michigan politicians to repeal that law
anytime soon. Although an editorial in the Detroit Free
Press calls on lawmakers should repeal this statutory relic,
efforts to do so have failed in the past due to strong lobbying
efforts by religious organizations and conservative political
groups.

So it's now
up to the Michigan Supreme Court to step in and set the record
straight, so to speak. Since the federal Constitution
protects the freedom of intimate association of same-sex
couples, it would be logical -- indeed a matter of equal
protection of the law -- that heterosexual couples should have
the same right to intimacy with their partners.

If a judge is
going to restrict the right of parents to have overnight
visitors when children are present, the rules should be the same
for everyone regardless of sexual orientation. And the
privacy rights of parents should not be restricted absent
evidence of harm to the children.

Thomas F. Coleman, Executive Director of Unmarried America, is an
attorney with 33 years of experience in singles' rights, family
diversity, domestic partner benefits, and marital status discrimination.
Each week he adds a new commentary to Column One: Eye on Unmarried
America. E-mail:
coleman@unmarriedamerica.org. Unmarried America is a nonprofit
information service for unmarried employees, consumers, taxpayers, and
voters.